Ugast v. La Fontaine

• Decision Date: 13 November 1947
• Docket Number: 6.
• Citation: 55 A.2d 705,189 Md. 227
• Parties: UGAST et al. v. LA FONTAINE et al.
• Court: Maryland Court of Appeals

55 A.2d 705

189 Md. 227

UGAST et al. v. LA FONTAINE et al.

No. 6.

Court of Appeals of Maryland

November 13, 1947

Appeal from Circuit Court, Howard County; James E. Boylan, Jr. Chief Judge.

Suit by Fred H. Ugast and others, copartners, trading as Capital Service Stations, against James A. LaFontaine and others to recover an amount lost by plaintiffs' bookkeeper in gambling. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Duckett, Gill & Anderson and Mason, Spalding & McAtee, all of Washington, D. C., and John L. Clark, of Ellicott City, for appellants.

Wilson K. Barnes, of Baltimore (Carman, Anderson & Barnes, of Baltimore, Charles E. Ford, of Washington, D. C., and Jerome A. Loughran, of Ellicott City, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

DELAPLAINE, Judge.

Fred H Ugast, John W. Lyles and Milton E. Groome, copartners trading as Capital Service Stations, brought this suit in the Circuit Court for Prince George's County to recover $33,886.52, which had been lost by their bookkeeper, Harry W. Wilson, by gambling. The suit was instituted on December 30, 1943, against James A. LaFontaine, the Maryland Athletic Club, a corporation, and Charles Price, who operated gaming tables at an establishment on the Baltimore-Washington Boulevard, where Wilson lost their money. Plaintiffs alleged that the bookkeeper embezzled $43,886.52, making false entries in their books to conceal the misappropriation; but they had a bond of the United States Fidelity and Guaranty Company for $10,000 to indemnify them against Wilson's misappropriation, and as that company paid them this amount, defendants owed them a balance of $33,886.52.

The Maryland Athletic Club was returned non est. The other defendants, LaFontaine and Price, filed three pleas: (1) that the cause of action did not accrue within three months before the filing of the suit, (2) that the cause of action did not accrue within six months before the filing of the suit, and (3) the general issue. Plaintiffs demurred to the first and second pleas, and joined issue on the third. The Court sustained the demurrer to the first plea, and overruled the demurrer to the second plea. The case was then removed to the Circuit Court for Montgomery County, and subsequently to the Circuit Court for Howard County. LaFontaine and Price then, by permission of the Court, filed three additional pleas: (4) that they had discharged plaintiffs' claim by payment, (5) res judicata, and (6) that Wilson, plaintiffs' bookkeeper, had brought suit against defendants for $43,886.52, and had obtained a judgment for $30,000, and that plaintiffs had received the amount of the judgment, and they would be unjustly enriched if they are not estopped from further recovery. Plaintiffs filed a motion ne recipiatur to the fourth plea, and demurred to the fifth and sixth pleas; and the motion and the demurrers were overruled. Plaintiffs declined to plead further, whereupon the Court entered judgment in favor of defendants. From that judgment plaintiffs appealed.

It is an accepted rule of pleading that a motion ne recipiatur may be made by a plaintiff if the defendant's pleas were filed too late or not in the mode required by law which entitles them to be replied to. 1 Poe, Pleading and Practice, 5th Ed., sec. 668. In the Court below plaintiffs gave no reason for their motion that the fourth plea be not received. As there was no apparent defect in the fourth plea, which followed the statutory form of a plea of payment, Code 1939, art. 75, § 28(51), the Court acted properly in overruling the motion.

We now consider the final question whether the action was res judicata. The fifth plea recites that on December 30, 1943, a similar action was brought against the same defendants by Wilson, former employee of plaintiffs, and that the case was removed to the Circuit Court for Montgomery County, where the case was tried on its merits in May, 1945. The plea further recites that Wilson lost $43,886.52 which he had embezzled from his employers; the suit was dismissed as to Price, and the jury brought in a verdict for $30,000 in favor of plaintiff against LaFontaine, and on May 31 judgment was rendered on the verdict; on June 15 the judgment was entered to the use of Fred H. Ugast, John W. Lyles and Milton E. Groome, copartners, trading as Capital Service Stations; and defendants appealed from the judgment, but on February 7, 1946, it was affirmed by the Court of Appeals. LaFontaine v. Wilson, To Use of Ugast, 185 Md. 673, 45 A.2d 729.

The doctrine of res judicata is that an existing final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of the rights of the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction as to the matters in issue in the first suit. Christopher v. Sisk, 133 Md. 48, 51, 104 A. 355, 356. The doctrine rests on the ground that the party to be affected, or some other person with whom he is in privity, has litigated the same matter in a former action, and he should not be permitted to vex his opponent by litigating it again, even though the causes of action may be different. Public policy dictates that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered settled as between the parties. Aspden v. Nixon, 4 How. 467, 11 L.Ed. 1059, 1074; Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244.

In the case before us the subject matter is the same as in the former suit. Both suits were filed by the same attorneys against the same defendants on the same day in the same Court, and both were brought to recover money lost by the same person at gaming tables operated by the same defendants. The evidence that would be...